Timberlake v. Timberlake ( 2011 )


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  • [Cite as Timberlake v. Timberlake, 
    192 Ohio App.3d 15
    , 
    2011-Ohio-38
    .]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    MARION COUNTY
    TIMBERLAKE,
    APPELLANT,                                                CASE NO. 9-10-38
    v.
    TIMBERLAKE,                                                       OPINION
    APPELLEE.
    Appeal from Marion County Common Pleas Court
    Family Division
    Trial Court No. 06-DR-198
    Judgment Affirmed
    Date of Decision: January 10, 2011
    APPEARANCES:
    Robert E. Wilson, for appellant.
    Kevin P. Collins, for appellee.
    Case No. 9-10-38
    WILLAMOWSKI, Judge.
    {¶ 1} Plaintiff-appellant, John Timberlake (“John”) appeals the judgment
    of the Marion County Court of Common Pleas, Family Division, denying his
    request for modification/termination of spousal-support payments to defendant-
    appellee, Lisa Timberlake (“Lisa”).     John claims that the trial court erred in
    finding that the modification was barred because the inheritance Lisa received
    from her parents was a change in circumstances that was contemplated at the time
    of the original decree. For the reasons set forth below, the judgment is affirmed.
    {¶ 2} John and Lisa were divorced on January 31, 2007, after 26 years of
    marriage. John was 49 years old at the time, and Lisa was 51. Their two children
    were emancipated. The divorce was resolved by agreement with the judgment
    entry incorporating the terms stated in the “Agreement & Stipulation of the
    Parties,” filed on December 8, 2006 (“the stipulation”). The stipulation provided
    for the division of all real and personal property, vehicles, bank accounts,
    retirement plans, and debts. It also provided for the payment of spousal support.
    {¶ 3} At the time John filed for divorce in June 2006, he was earning
    approximately $160,000 per year as a sales manager, and Lisa was working part-
    time for $7.50 per hour. The agreed judgment entry decree of divorce (“the
    decree”) provided that, pursuant to the stipulation, John would pay Lisa spousal
    support in the amount of $50,000 per year for ten years and one final year of
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    Case No. 9-10-38
    spousal support at $30,000, for a total 11-year obligation. The decree further
    stated that spousal support would terminate upon the death of either party or if
    Lisa remarried or cohabitated with an adult male who was not a family member.
    {¶ 4} The stipulation had provided for the trial court to retain jurisdiction
    over the matter of spousal support, but the decree omitted this provision. In
    conjunction with his motion for spousal-support termination, John filed a Civ.R.
    60(B) motion for relief from judgment to amend the decree to comport with the
    stipulation. The trial court found that the parties intended for the court to retain
    jurisdiction over spousal support and granted the motion.1
    {¶ 5} Shortly after the parties divorced in 2007, Lisa’s mother died in
    January 2008, and her father died in September 2008. They were 83 and 81 years
    old, respectively, at the time of their deaths. As a result, Lisa and her sister
    Suzanne each received an inheritance of $1,269,000. On May 20, 2009, John filed
    a motion to terminate spousal support because of Lisa’s inheritance.
    {¶ 6} On March 30, 2010, the trial court held a hearing on the motion and
    heard testimony from Lisa, John, Lisa’s sister, Suzanne, and a financial-planning
    specialist (who testified as to the amount of investment income the
    1
    John filed his Civ.R. 60(B) motion on March 16, 2010. The trial court ruled on this matter in the April
    27, 2010 judgment entry concerning the motion to terminate spousal support that is the subject of this
    appeal.
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    Case No. 9-10-38
    inheritance might potentially provide). After hearing all the testimony, the trial
    court considered whether it had jurisdiction to consider a modification of the
    spousal-support order by applying the law as stated in R.C. 3105.18 and
    Mandelbaum v. Mandelbaum, 
    121 Ohio St.3d 433
    , 
    2009-Ohio-1222
    , 
    905 N.E.2d 172
    . In Mandelbaum, the Ohio Supreme Court affirmed that a trial court has
    jurisdiction to modify a prior order of spousal support only if the decree of the
    court expressly reserved jurisdiction to make the modification and if the court
    finds that (1) a substantial change in circumstances has occurred and (2) the
    change was not contemplated at the time of the original decree. 
    Id.
     at paragraph
    two of the syllabus.
    {¶ 7} The trial court found that it had retained jurisdiction to modify the
    order and that the large inheritance constituted a substantial change in
    circumstances.     However, the court determined that the second prong of the
    Mandelbaum test was not met because the inheritance was a change in
    circumstances that was specifically contemplated at the time of the original decree.
    Therefore, the trial court denied John’s motion for modification/termination of
    spousal support.
    {¶ 8} John timely appeals this decision, raising the following assignment
    of error for our review.
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    Case No. 9-10-38
    The Family Court erred in concluding that [Lisa’s]
    inheritance was a change contemplated at the time of the divorce
    barring a later modification or termination of spousal support.
    {¶ 9} A trial court has broad discretion in determining whether or not to
    modify an existing spousal support award. Hines v. Hines, 3d Dist. No. 9-10-15,
    
    2010-Ohio-4807
    , ¶ 17; Mottice v. Mottice (1997), 
    118 Ohio App.3d 731
    , 735, 
    693 N.E.2d 1179
    . Absent an abuse of discretion, a trial court's decision pertaining to
    modification of a spousal-support award will not be disturbed on appeal. Bostick
    v. Bostick, 3d Dist. No. 1-02-83, 
    2003-Ohio-5121
    , ¶ 8, citing Booth v. Booth
    (1989), 
    44 Ohio St.3d 142
    , 144, 
    541 N.E.2d 1028
    . An abuse of discretion is more
    than an error in judgment; it signifies that the trial court's attitude was
    unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 
    5 Ohio St.3d 217
    , 219, 
    450 N.E.2d 1140
    . When applying an abuse-of-discretion
    standard, an appellate court may not substitute its judgment for that of the trial
    court. Berk v. Matthews (1990), 
    53 Ohio St.3d 161
    , 169, 
    559 N.E.2d 1301
    . The
    burden of establishing the need to modify spousal support rests with the party
    seeking modification. Tremaine v. Tremaine (1996), 
    111 Ohio App.3d 703
    , 706,
    
    676 N.E.2d 1249
    .
    {¶ 10} The Ohio Supreme Court has long emphasized that an agreement for
    spousal support that has been entered in a divorce decree by a trial court is entitled
    to expectations of finality. Mandelbaum, 
    121 Ohio St.3d 433
    , 
    2009-Ohio-1222
    ,
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    Case No. 9-10-38
    
    905 N.E.2d 172
    , at ¶ 15, citing Wolfe v. Wolfe (1976), 
    46 Ohio St.2d 399
    , 415-416,
    
    350 N.E.2d 413
     (tracing nearly 100 years of decisions concerning alimony). A
    trial court will have jurisdiction to modify a prior order of spousal support only if
    the decree of the court expressly reserved jurisdiction to make the modification
    and if the court finds that a substantial change in circumstances has occurred and
    that the change had not been contemplated at the time of the original decree.
    Mandelbaum, at paragraph two of the syllabus.
    {¶ 11} The trial court found that it retained jurisdiction to review the matter
    and that Lisa’s inheritance constituted a substantial change in circumstances.
    John’s sole assignment of error challenges the trial court’s finding that
    modification or termination of spousal support was precluded because the parties
    contemplated Lisa’s inheritance at the time of the original decree.
    {¶ 12} The Ohio Supreme Court has stated that “the change in
    circumstances must be one that had not been contemplated and taken into account
    by the parties or the court at the time of the prior order.” Mandelbaum, 
    121 Ohio St.3d 433
    , 
    2009-Ohio-1222
    , 
    905 N.E.2d 172
    , at ¶ 32.            John argues that the
    stipulation and decree were silent regarding the potential inheritance because there
    was no way of knowing when it might occur or how much it might actually be.
    John maintains that an inheritance is something that can be “foreseen” in that it
    may come to a party someday, but it is “unforeseeable” to know when it will come
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    Case No. 9-10-38
    or exactly how much it will be. For a contemplated change to exist, he believes
    that the parties must have some knowledge of a specific time-frame and amount,
    such as future retirement benefits, where the parties may be aware of the expected
    age of retirement and the calculation of the monthly benefits.
    {¶ 13} John contends that the fact that Lisa’s potential inheritance was
    discussed does not remove the speculative nature of an inheritance in order to
    make it a “contemplated” event “taken into account” by the parties. John claims
    that he intended to pay the $50,000 annual support to Lisa only to supplement her
    income until she received her inheritance. Therefore, he wanted the trial court to
    reserve jurisdiction to review the support order to determine whether the need still
    existed to continue the spousal-support payments, based upon the timing and the
    amount of the inheritance.
    {¶ 14} However,    Lisa testified that the potential inheritance was
    contemplated and thoroughly discussed at the time of the divorce negotiations.
    She also testified that the impact of any inheritance she would receive on an award
    of spousal support was taken into account and specifically excluded from the
    settlement agreement. She believed that the trial court would retain jurisdiction
    over the matter of spousal support only to the extent that it could terminate spousal
    support as provided for in the decree, i.e., in the event that she remarried or
    cohabitated.
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    Case No. 9-10-38
    {¶ 15} John claims that the inheritance was speculative because no one
    knew when Lisa’s parents would die or how much she would inherit. However,
    Lisa and Suzanne both testified that John was very much aware of the fact that
    their parents were in extremely poor health and that they had a substantial estate,
    which the two sisters would inherit. In 2004, the entire family went to Chicago to
    celebrate what might be their last Christmas together and have a family portrait
    taken. Lisa’s mother, who was over 80 years old and had previously had breast
    cancer, had been diagnosed with bone cancer. The doctors believed that she might
    live only three to five years at the most. Lisa’s father had suffered a fractured
    skull, resulting in severe dementia, had had a stroke, and was a heavy drinker and
    smoker. His prognosis was also poor. At the family gathering, Suzanne, who had
    been named executor of her parents’ estate, shared detailed financial information
    with Lisa and John concerning their parents’ wills, trusts, and assets. Suzanne
    wanted the entire family to be aware of all the facts, and she testified that she
    showed Lisa and John a spreadsheet listing her parents’ substantial assets. Lisa
    often had to make trips to Chicago because of her parents’ poor health. Lisa and
    Suzanne also testified that John was knowledgeable about the extent of their
    parents’ wealth, and he had assisted their father in selling his business.
    {¶ 16} John generally denied having much knowledge about the parents’
    poor health or their assets, or he frequently “did not recall” many of the events or
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    Case No. 9-10-38
    alleged discussions. However, Lisa’s and Suzanne’s testimony enumerated many
    specific instances and facts that contradicted John’s claims.       John’s own
    deposition, taken only a few weeks before the hearing, was used to impeach his
    testimony. His deposition testimony clearly revealed that he understood that Lisa
    “would receive a huge inheritance.”
    Q. * * * [Were] there discussions about various inheritances
    between you and Lisa?
    A. Before we were divorced, I mean, in negotiating, I talked that I
    only wanted to pay until her parents died because I knew she would
    receive a huge inheritance and she wouldn’t need my support
    anymore.
    ***
    Q. So your recollection is, there [were] discussions about that
    there was a large estate that would be coming due if the will stayed
    as it was, which was half to Lisa and half to her sister?
    A.    Uh-huh.
    Q. And you, according to what you just said, knew that the parents
    had a lot of money, a lot of assets, going to have a large estate, I
    mean, you’ve done the math, you’ve seen that she got about a
    million dollars.
    A.    Yeah. I didn’t know how much it was going to be.
    Q.    But you knew it was substantial?
    A.    Yes.
    {¶ 17} John originally had wanted his spousal-support obligation to
    terminate when Lisa received her parents’ inheritance. However, Lisa strongly
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    Case No. 9-10-38
    objected to this condition. In his deposition, John testified that the predivorce
    documents contained terminology stating that spousal-support would terminate
    when Lisa inherited her parents’ money. After continued negotiations between the
    parties, this language was ultimately removed.
    {¶ 18} Although John claims that the timing and the amount of Lisa’s
    inheritance were speculative, there was considerable evidence showing that John
    knew her parents were very likely to not live much longer and that he had a good
    understanding as to the significant amount of money Lisa was very likely to
    inherit. The trial court apparently found Lisa’s and Suzanne’s testimony to be
    more credible than John’s. The credibility of the witnesses and the weight to be
    given their testimony are primarily for the trial court's determination. Tremaine,
    111 Ohio App.3d at 707, 
    676 N.E.2d 1249
    .
    {¶ 19} John cited cases in which courts have found that an inheritance
    constituted an unforeseen change of circumstances. See, e.g., Howell v. Howell,
    
    167 Ohio App.3d 431
    , 
    2006-Ohio-3038
    , 
    855 N.E.2d 533
    . However, the facts in
    Howell and the other case are very different from those in this case. For instance,
    in Howell, the appellant was only a contingent beneficiary of his grandfather’s
    trust fund at the time of the divorce. He had no rights to the trust fund until after
    the death of both his parents, and there was no information concerning the
    likelihood of their demise in the near future.   We are cognizant of the fact that
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    Case No. 9-10-38
    there certainly might be situations in which a party’s inheritance would constitute
    a substantial change of circumstances that was not contemplated at the time of the
    original decree. Every situation may have varying facts and circumstances that
    can affect the final determination. That is why the trial court is vested with the
    discretion to review and evaluate the individual merits of each case.
    {¶ 20} John also argues about the retroactive applicability of Mandelbaum,
    
    121 Ohio St.3d 433
    , 
    2009-Ohio-1222
    , 
    905 N.E.2d 172
    , which was not decided
    until 2009, to their divorce decree, which was finalized in 2007.         However,
    Mandelbaum did not modify the long-standing rule of law that in order to warrant
    a modification of spousal support due to a change in circumstances “ ‘the change
    must be one that is substantial and not contemplated at the time of the prior order.’
    ” Trotter v. Trotter (2001), 3d Dist. No. 1-2000-86, 
    2001 WL 390066
    , *2, quoting
    Tremaine v. Tremaine (1996), 
    111 Ohio App.3d 703
    , 706, 
    676 N.E.2d 1249
    . See
    also Reveal v. Reveal, 
    154 Ohio App.3d 758
    , 
    2003-Ohio-5335
    , 
    798 N.E.2d 1132
    , ¶
    14; Moore v. Moore (1997), 
    120 Ohio App.3d 488
    , 491, 
    698 N.E.2d 459
    ; Leighner
    v. Leighner (1986), 
    33 Ohio App.3d 214
    , 215, 
    515 N.E.2d 625
    . In resolving a
    conflict between the appellate districts, Mandelbaum merely affirmed that the
    1991 statutory modifications to R.C. 3105.18 did not change this long-held tenet
    of common law.      Mandelbaum at ¶ 29.        Mandelbaum primarily focused on
    whether the change of circumstances still needed to be “substantial.” Only three
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    Case No. 9-10-38
    appellate districts, the Fifth, Ninth, and Eleventh, had failed to continue to utilize
    the “well-established” standard.       Id. at ¶ 29-30.     John cannot claim that
    Mandelbaum introduced any new rule of law that would affect his decree.
    {¶ 21} John further asserts that it was wrong to equate “contemplated” with
    a contingency that may have been merely “known and discussed.” However, in
    this case, the contingency of the inheritance was more than just known and
    discussed. The option of discontinuing spousal support upon Lisa’s receipt of the
    inheritance was known, discussed, negotiated, and rejected by the parties in the
    determination of their final stipulation.
    {¶ 22} Both parties have raised some meritorious arguments on appeal.
    However, whether or not we come to the same conclusion as the trial court, our
    role is only to review for an abuse of discretion. See, e.g., Selanders v. Selanders,
    3d Dist. No. 17-08-28, 
    2009-Ohio-2303
    , ¶ 33.           We must “refrain from the
    temptation of substituting [our] judgment for that of the trier-of-fact, unless the
    lower court's decision amounts to an abuse of discretion.” Martin v. Martin
    (1985), 
    18 Ohio St.3d 292
    , 295, 
    480 N.E.2d 1112
    . The trial court's decision was
    supported by competent, credible evidence and testimony presented at the hearing,
    and it was not unreasonable, arbitrary, or unconscionable. It was within the trial
    court’s sound discretion to find that Lisa’s inheritance was a contemplated change
    of circumstances that was taken into account by the parties as they were
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    Case No. 9-10-38
    negotiating their final agreement. Therefore, it is not proper to disrupt the finality
    of the decree in order to provide John with another opportunity to obtain the terms
    that he was not able to negotiate in the original stipulation.           Appellant’s
    assignment of error is overruled.
    {¶ 23} Having found no error prejudicial to the appellant herein, in the
    particulars assigned and argued, we affirm the judgment of the trial court.
    Judgment affirmed.
    ROGERS, P.J., and PRESTON, J., concur.
    -13-
    

Document Info

Docket Number: 9-10-38

Judges: Willamowski, Rogers, Preston

Filed Date: 1/10/2011

Precedential Status: Precedential

Modified Date: 3/2/2024